remanded EB-1C Case: Business Management

(b)(6)
DATE: MAY 0 2 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
~.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AA0) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.s .. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b){l){C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b){l){C) 
ON BEHALF OF PETITIONER: . 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further 
inquiry that you might have concerning your case must be made to that office. 
Thank you, 
Lp__ . 
j. Ron Rosenberg ' 
Acting Chief, Administrative Appeals Office 
(b)(6)Page2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
withdraw the director's decision and remand the matter for further consideration and entry of a 
new decision. 
The petitioner is a Texas corporation that seeks to employ the beneficiary as president/chief 
executive. Accordingly, the petitioner endeavors to classify the beneficiary as an employment­
based immigrant pursuant to section 203(b)(l )(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational. executive or manager. 
' ' 
The director denied the petition concluding that the petitioner failed to establish that the 
petitioner had a qualifying relationship with the beneficiary's foreign employer. Specifically, 
the director determined that "a qualifying relationship does not exist between the petitioner and 
the foreign parent company because the petitioner operates as a franchise and 
primary control of the business resides with 
On appeal, counsel provided a comprehensive appellate brief along with new documentary 
evidence, AAO unpublished opinions, and other evidence already presented in the record. 
Counsel asserts that the petitioner's operation of a franchised business does not prohibit a finding 
that it has a qualifying relationship with the beneficiary's foreign employer. 
Upon reviewing the record in its entirety and considering supplemental submissions on appeal, 
the AAO finds that the petitioner has submitted sufficient evidence to overcome the director's 
adverse decision. Accordingly, the director's decision, dated June 20, 2012 will be withdrawn. , 
Notwithstanding this favorable conclusion, the AAO finds that the record lacks sufficient 
evidence to establish that the beneficiary had been employed abroad or would be employed in 
the United States in a qualifYing managerial or executive capacity. Accordingly, the AAO will 
remand 
the petition for further action and entry of a new decision. 
Section 203(b) of the Act states, in pertinent part: 
(l) Priority Workers. -- Visas shall first be made available .•. to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is ;described in 
this subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph, has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the 
(b)(6)
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United States in order to continue to render services to the same employer or to a 
subsidiary or atliliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and are coming to the United States to work for the same entity, or its 
affiliate or subsidiary . 
A United States employer may file a petition on Form I-140 for classification of an alien under 
section 203(b)(l )(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the fonn of a statement which indicates that the alien is to be employed in the United 
States in a managerial or executive capacity. Such a statement must clearly describe the duties to 
be performed by the alien. 
At issue in this decision was whether the petitioner had established a qualifying relationship with 
the beneficiary's foreign employer. In order ·to qualify for this visa classification, the petitioner 
must establish that a qualifying relationship exists between the United States and foreign entities in 
that the petitioning company is the same employer or an affiliate or subsidiary of the foreign entity. 
See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the 
same share or proportion of each entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. · 
(b)(6)
Page4 
On review, the director incorrectly focused on the petitioner's operation of a franchise rather 
than on the necessary qualifying relationship between the beneficiary's foreign employer and the 
U.S. petitioner~ The director noted that the franchise agreement gave the franchisor final say in 
the methods and standards of the operation and that the fUndamental aspects of the business were 
ultimately controlled by the franchisor. Therefore, the director found that no qualifying 
relationship existed between the petitioner and the beneficiary's foreign employer because the 
primary control of petitioner, as a franchise owner, resided with the franchisor. 
The regulations and case law confirm that the key factors ' for establishing a qualifying 
relationship between the U.S. and foreign entities are "ownership" and "control." Matter of 
Siemens Medical Systems, Inc. 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 
289 (Comm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988) (in immigrant visa proceedings). In the context of this visa petition, ownership refers to 
the direct and indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
' establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
In general, a "franchise" is a cooperative business operation based on a contractual agreement in 
which the franchisee undertakes to conduct a business or to sell a product or service in 
accordance with methods and procedures prescribed by the franchiser, and, in return, the 
franchiser undertakes to assist the franchisee through advertising, promotion, and other advisory 
services. A franchise agreement, like a license, typically requires that the franchisee comply 
with the franchiser's restrictions, without actual ownership and control of the franchised 
operation. See Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970) (finding that no 
qualifying relationship exists where the association between two companies was based on a 
license and royalty agreement that was subject to termination since the relationship was "purely 
contractual"). An association between a foreign and U.S. entity based on a contractual franchise 
agreement is usually insufficient to establish a qualifying relationship. !d. 
By itself, the fact that a petition involves a franchise will not automatically disqualify the 
petitioner. When reviewing a petition that involves a_ franchise, the director must carefully 
examine the record to determine how the franchise agreement affects the claimed qualifying 
relationship. As discussed, if a foreign company enters into a franchise, license, or contractual 
relationship with a U.S. company, that contractual relationship can be terminated and will not 
establish a qualifying relationship between the two entities. See Matter of Schick, 13 I&N Dec. 
at 649. However, if a foreign company claims to be related to a U.S. company through common 
ownership and control, and that U.S. company is doing business as a franchisee, the director 
must examine whether the U.S. and foreign entities possess a qualifying relationship through 
conu:llon ownership and management. · 
Nonetheless, it is critical in all cases that the petitioner fully disclose the terms of any franchise 
agreement, especially as the agreement relates to the transfer of ownership, voting of shares, 
(b)(6)
Page 5 
distribution of profit, management and direction of the franchisee, or any other factor affecting 
actual control of the entity. Cf Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-
65. 
In the present matter, the record reflects that the petitioner was incorporated in the State of Texas 
as a separate legal entity. It is the relationship between this petitioner and the foreign company 
that requires consideration. While the franchise agreement between the petitioner, as franchisee, 
and the franchisor is included in the record it does not disclose any relevant information 
regarding this issue. Rather, the relevant issue is whether common ownership and control 
existed between the petitioner, as a separate United States entity, and the foreign company at the 
time the petition was filed. As previously noted, the director incorrectly focused this decision on 
the franchise agreement. Accordingly, the director's findings regarding the franchise agreement 
are withdrawn. 
Upon review of the record, the petitioner had provided evidence of ownership and control of the 
U.S. and foreign entities and has established that they have a qualifying affiliate relationship in 
accordance with 8 C.F.R. 204.5(j)(2)(A). 
As noted, the AAO finds the record lacks sufficient 
evidence to establish that the beneficiary had 
been employed abroad, or would be employed in the United States, in a qualifying managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. §I 10l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial empl<)yees, or manages an essential function within. the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization) or, if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
( 
(iv) exercises discretion over the day-to .. day operations of the activity or function for 
which the employee has authority. 
(b)(6)
Page6 
Section 10l(a)(44)(8) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee 
primarily--
(i) , directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In this matter, the petitioner included a description of the beneficiary's employment abroad but it 
lacked sufficient detail about the beneficiary's specific daily job duties and did not establish that 
his primary tasks were within a qualifying managerial or executive capacity. In addition, the 
petitioner did not provide sufficient information or doclfmentation with regard to the foreign 
company's organizational hierarchy to establish the availability of a support staff who would 
relieve the beneficiary from having to primarily perform non-qualifying job duties associated 
with the day-to-day operations of the business. An· employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also 
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Witholft 
sufficient information to establish what specific job duties the beneficiary performed during his 
employment abroad, the AAO cannot conclude that the petitioner meets the provisions of ~ 
C.F.R. § 204.5(j)(3)(i)(B). 
Additionally, with regard to the beneficiary's proposed position with the U.S. petitioner, the 
regulation at 8 C.F.R. § 204.5(j)(5) requires the petitioner to provide a detailed description of the 
beneficiary's proposed job duties. Case law further emphasizes the need for· a detailed job 
description, finding that the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D,N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 
1990). The record as presently constituted contains a vague job description that focuses on the 
beneficiary's general duties and overall responsibilities. The job description fails to cite specific 
tasks the beneficiary would perform or allocate a percentage of time the beneficiary would spend 
on the duties discussed. Finally, the petitioner fails to establish who within the company would 
relieve the beneficiary from having to perform the daily operational tasks, which, while 
necessary for the petitioner's daily function, would nevertheless be deemed as non-qualifying. In 
order to be classified as a multinational manager or executive, the primary portion of the 
"' 
(b)(6)
Page7 
beneficiary's tasks must be of a managerial or executive nature rather than tasks necessary to 
produce a product or to provide services. See Matter of Church Scientology International, 19 
I&N Dec.· at 604. 
-While a final determination regarding the beneficiary's employment capacity is not solely based 
on the 
petitioner's organizational hierarchy, this factor can and should be considered, as it helps 
to assess a company's overall ability to relieve the beneficiary from having to primarily perform 
tasks outside of a qualifying managerial or executive capacity. See Family, Inc. v. U.S. 
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 
F.2d 41, 42 (2d Cir. 1990) (per curia~); Q Data Consulting Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003). In the present matter, the petitioner has not provided sufficient documentation to 
establish its ability to relieve the beneficiary from having to primarily perform non-qualifying 
tasks. As such, the beneficiary's proposed employment has not been shown as being primarily 
within a qualifying managerial or executive capacity. 
Based on the foregoing discussion, while the AAO will remand this matter back to the director 
for further action, it finds that the record as presently constituted does not establish that the 
petitioner and beneficiary are eligible for the immigration benefit sought. In reviewing the 
record, the director may request additional evidence per the above discussion as well as any other 
evidence the director deems necessary to determine the petitioner's eligibility for the immigration 
benefit sought 
ORDER: The director's decision dated June 20, 2012 is hereby withdrawn. The 
matter is remanded for further action and consideration consistent with the 
above discussion and ently of a new decision, which, if adverse to the 
· petitioner, shall be certified to the AAO.